Making A Will In Nigeria 2

This means a gift of personal property effected by Will, or an amount of money or property left to someone in a Will. Thus, it is said to be a gift.
Where gifts are movables or personal, they are referred to as legacy or legacies. The person whom a legacy passes to is called a “legatee” or “beneficiary”. Where it is a gift of immovable or interest in land, it is referred to as a device, and the beneficiary as a “devisee”.


The types of legacies we have are –
1.     Specific legacy.
2.     General legacy.
3.     Demonstrative legacy.
4.     Pecuniary legacy.
5.     Absolute legacy.
6.     Alternate legacy.
7.     Accumulated legacy.
8.     Contingent legacy.
9.     Modal legacy.
10.  Residuary legacy.
11.  Conditional legacy.
12.  Annuity.
Specific legacy is a distinguishable gift from other properties that form part of the testator’s estate. (a gift plus description) Under such legacy, the gift should be sufficiently described as to be distinguishable from other properties of the testator. It may be indicated by the use of the word “MY” followed with the detail description of the gift.
For example –
“I give My Note of week fifteen to my friend, Henry”.
It is specific because it describes the gift in a specified term which is distinguished from others. If a court has to construe whether or not a particular gift is a specific gift, it will usually lean against finding that it is and will prefer to find that it is a general legacy because specific legacies are liable to fail by ademption, although they hold a more privileged position than general legacies where the estate is sufficient to meet all the gifts in the Will. Thus, the problem with a specific gift is that it fails by ademption where the gift cannot be found at the death of the testator. Therefore, the testator should make a substituted gift.
This is a general legacy which unlike a specific legacy refers to any particular piece of the testator’s estate. Thus it is not defined or identifiable. ( a gift without description)
For example –
“I give My Note to Henry”.
It must be noted that the use of the word “MY” in reference to the gift does not convert it to a specific legacy. What determines if it is a specific or general legacy is whether is describes the legacy or not. Thus, a specific legacy is – a gift plus description; whilst a general legacy is – a gift without description.
The general legacy does not fail by ademption in the same sense as it applies to a specific legacy. In Whitehead v. Street (Re Whitehead) (1913) 2 Ch. 56, it was stated that if the estate of the testator is insufficient to pay all the legacies in full, the general legacies must abate in equal proportion.
Demonstrative legacy is one that is to be paid out of or to be received from a specific source or fund or pool of property. Thus, it is a gift of a certain sum of money with a direction that the money be paid from a particular fund. For example, a gift of a sum of money to be paid out of a particular bank account to the legatee. In Re Webster (1937) 1 All ER 602, a gift of sum of money to be paid out of the testator’s share in the family business was held to be a demonstrative legacy.
Demonstrative legacy is like a specific legacy in that the testator describes the gift but goes further to designates the source or fund from where the gift can be realised.
For example –            
“A gift of N1,000,000,000 (One billion naira) to be paid out of my account with Swiss Bank to Henry”.
In Watford v. Watford (1912) AC 658, the testator gave to his sister a sum of money to be paid out of the estate and effects inherited by him from his mother. The court held that the legacy was demonstrative irrespective of the fact that it was to be paid from a sum to be received later.
A demonstrative legacy is – a gift plus description plus source. Demonstrative legacy do not fail by ademption.Depending on the draftman’s style.
A pecuniary legacy is a gift of a sum of money in a Will. It may or may not specify where the money is to be drawn from.
An absolute legacy is a gift made in a Will that is not subject to any condition but vests automatically or immediately in the legatee.
An alternate legacy is a gift where the legatee is given the opportunity to choose between two or more properties amongst the assets in the estate.
An accumulated legacy is a gift in a Will that is yet to be given out to the beneficiary. And until the legacies are given out as directed by the testator, they remain accumulated.
A contingent legacy is a gift made in a Will that depends on an uncertain event to vest in the legatee.
For example –
“A gift of My Note to Henry when if Arsenal wins premiership”.
This means that until Arsenal wins premiership, Henry is not entitled to the gift.
A modal legacy is a gift accompanied by directions as to how it will be applied to the benefit of the legatee.
A residuary legacy is a gift of part of the estate that remains after the settlement or satisfaction of debts and expenses after the testator’s death.
The Will should provide for a residuary clause to give direction on how the residuary legacies are to be dealt with. Residuary clause will usually pass whatever remains in the estate after the discharge of all claims against the estate and the satisfaction of legacies made in the Will to beneficiaries. They include any gift that fails or those properties the testator may acquire after making the Will.
The legal consequences of a Will that fails to provide for a residuary clause is that it creates a situation of partial intestacy. This means that the testator died leaving a Will in respect of some matters and no Will in respect of other matters.
The executors must exercise due care and diligence while the residuary legacy remains unascertained – Re Tankard, Tankard v. Midland bank Executors and Trustees Co. Ltd (1942) Ch. 69. Also, the residuary legatee is not entitled to any particular assets in the estate of the deceased until the residue is unascertained – Lord Sudeley v. A.G (1897) AC 11.
A conditional legacy is a gift that becomes effective upon the occurrence or non-occurrence of a specified event. In Hickling v. Boyer (1851) 42 ER 404, a gift of leasehold to a beneficiary subject to the payment of rents and the performance of the covenants reserved and contained in the lease agreement was held to be a conditional legacy and that the beneficiary was equally liable to reinstate the demised premises pursuant to the covenant in the lease on the part of the testator.
The beneficiary cannot be compelled to fulfil the condition where he renounces the gift just that he cannot accept the gift and reject the condition – Long v. Kent 12 LT 794.
An annuity is a gift of a specified sum of money to be paid out to a designated recipient periodically or series of legacies made payable at intervals – Re Earl of Berkley (1968) 3 All ER 364.
There are two circumstances or instances under which legacies or gifts may fail –
1.     Ademption;
2.     Lapse;
3.     Abatement; and
4.     void

i.               ADEMPTION
This is instances where a gift ceases to exist at the time of the death of a testator. This is due to gift or legacy being destroyed, sold or as a result of bankruptcy, etc.
However, in circumstances where the subject matter is substantially the same, a mere change in the name or form of the subject matter of the gift does not adeem the legacy.
To avoid ademption in specific gifts, the testator should be advised to make alternative or substituted gift to the beneficiary.
For example –            
“I give to Gram my Lincoln Navigator with Reg No. LA 3311 IKJ and if I do not at my death own the said car to satisfy this gift, I give to Gram in lieu the sum of N500,000,000 (Five hundred million naira).”
This is a situation where a gift fails because the legatee dies before the testator, or where in the case of a company as a corporate body, the company ceases to exist.
There are, however, exceptions to the principles of lapse. They are –
1.     Beneficiary is testator’s child and died leaving an issue----section 33 Wills Act

2.     The principle of lapse does not apply where the gift is made to joint tenants, or the gift is a class gift since the gift goes to the remaining tenants or members of the class.

3.     A declaration against the application of lapse but which must be accompanied by a substitutional gift.

4.     The provision of section 24 of the Wills Law of Lagos State which provides that where a person being a child of the testator who has a disposition in his favour dies in the lifetime of the testator, but has a child or issue who is living after the death of the testator, the disposition to the person shall not lapse. Rather, it shall take effect as if the death of the person had happened immediately after the death of the testator. The doctrine means that the beneficiary is deemed or presumed to have died immediately after the testator and thus make the gift the absolute property of the beneficiary for which he can pass it after his death to his child or issue.

5.     Substitutional gift.

Insufficiency of estate to provide for the gift i.e. insolvency of estate.
Uncertainty of gift or beneficiary; public policy (Re Callaway), promotes illegal purpose. Crime. Offends rule against perpetuity, fraud on testator (Wilkinson v. Joughlin). Mistake.
Disclaimer by the beneficiary-Townson v. Tickell
Attestation; beneficiary/ spouse is attesting witness.
S.18 marriage, divorce, annulment of marriage.
Gift made subject to a condition that is not fulfilled- Yates v. University college
Property not owned by the testator--------Oke v. Oke
This is one of the possibilities by virtue of the nature of a Will. However, it must be voluntarily or involuntarily done.
There are several ways by which a Will can be revoked. They are –
1.     Revocation by another Will or codicil.

2.     Revocation by destruction (animus revocandi)

3.     Revocation by subsequent marriage.
The preparation and execution of another valid Will revokes a previous one – section 20 of the Wills Act. However, for a latter Will to revoke a previous one, it must be clearly shown that the testator had the requisite intention to revoke the previous Will. Such intention can be gathered from the contents of the latter Will which will clearly state in its opening paragraph that all previous testamentary dispositions made by him are thereby revoked. In Henfrey v. Henfrey 13 ER 211, the testator disposed of his property in two conflicting Wills with each seemingly validly executed. The latter Will was made a year after the former was made. The latter Will did not contain any clause stating that the former Will was revoked. It was implied that the latter will impliedly revoke the former.
A Will may also be revoked by a codicil which expressly states that it is revoking the Will to which it relates.
Another way by which a Will can be revoked is outright destruction. However, for revocation by destruction to be valid, two things must exist namely –
a.     There must be actual destruction; and
b.     There must be intention to destroy.
Where there is actual destruction, the destruction must be total and the Will must be completely destroyed in a manner that it cannot be retrieved. Such destruction could be burning, tearing into shreds or other means of complete destruction and not mere squeezing.
Where there is intention to destroy, there must be the requisite intention to revoke the Will as destruction without intention to revoke cannot revoke a Will. In Cheese v. Lovejoy (1877) 2 PD 251, per Justice James, he stated thus –
“All the destroying in the world without intention to revoke will not revoke a Will nor will all the intention in the world without destroying.”
Both elements of destruction and intention must exist. Apart from burning, tearing or other way of destruction by the testator himself, some other person may in his presence and by his direction destroy the Will with the intention of revoking it. Symbolic destruction is therefore not sufficient to revoke a Will – Stephen v. Taprell 163 ER 473. Also, a Will is not revoked if mistakenly destroyed – In Goods of Thorton (1889) 14 PD 82.

This is another way by which a Will can be revoked – section 18 of the Wills Act. A subsequent marriage after the making of a Will revokes the Will. What this means is that if a man or woman makes a Will and later gets married at a future date after the making of the Will, such a Will stands revoked by operation of law. For a marriage to revoke a Will, such a marriage must be a statutory marriage or a marriage under the Act. It therefore follows from the foregoing that Customary/Moslem marriage or a marriage according to native law and custom cannot revoke a Will.
Loss of a Will does not necessarily amount to revocation. Where a Will is lost or destroyed in such a way that it does not amount to revocation, probate may be granted of the contents of the Will upon proof of such content and attestation of the Will. In Sugden v. Lord St. Leonard (1876) 1 PD 154, oral testimony of the daughter of the testator as to the contents of her father’s lost Will was admitted in evidence as proof of the contents of the Will.
It should be noted that the evidence of a solicitor that prepared the Will may establish due execution and attestation – Re Hannah (1954) NZLR 836. The contents of the Will may be proved from the instructions to the solicitor – Funcham v. Edwards (1842) 3 PD 1. The contents can also be proved by the evidence of an attesting witness to the Will. It does not matter that the attesting witness is an interested party. All that needs to be ascertained is whether the evidence of the witness is credible. Once the evidence is adjudged credible, it will be admitted – Sugden v. Lord St. Leonard (supra).
There are several exceptions to revocation of a Will. These are –
1.     Void marriage.
2.     Marriage under native law and custom.
3.     Wills made in contemplation of marriage.
4.     Wills made in exercise of power of appointment.
5.     Wills made before celebration of marriage under the Act between parties legally married under customary law.
A void marriage is not a valid marriage under the law. Thus, does not have the legal potentials to revoke a Will. A marriage is void where for instance, at the time of the marriage, either of the parties was legally married to another person.
An order of nullity need not be made for the effect to take place. In law, it is deemed as having not existed. However, once an order of nullity is made, it has retrospective effect and the marriage is considered as being void ab initio. In Mette v. Mette (1859) 1 Sw & Tr. 416, where the testator married the younger sister of his late wife, the marriage fell under the prohibited degree of affinity. It was held to be void and thus not capable of revoking the Will made before the marriage to the younger sister of the late wife. The Will was held to be valid.

Customary/Moslem marriage or a marriage according to native law and custom cannot revoke a Will.
In Jadesimi v. Okotie Eboh (1996) 2 NWLR (Pt. 429) 128, the defendant married in 1942 according to Itsekiri native law and custom. In 1947, he made a Will and in 1961, he remarried the same woman under the Act. The issue for determination was whether the marriage of 1961 revoked the Will made by him in 1947. The Supreme Court held that it is common practice in Nigeria for marrying parties to undergo two forms of marriage. The first was under customary law in adherence to the custom of their forefathers, and a statutory marriage in adherence to the Marriage Act. That it is never intended that the marriage under the Act should nullify the customary marriage but to supplement it. The Will was therefore not revoked by the subsequent marriage Act.
A Will made in contemplation of a marriage will not be revoked by the same marriage contemplated. This is where a Will is made by a testator before his marriage and at the time of making the Will, he or she was in a relationship with the opposite sex with the hope of getting married to that person, and if he makes the Will to the same person and eventually gets married to the same person, the Will made before the marriage will not be revoked by the marriage.
Section 11(b) of the Wills Law of Lagos State provides thus –
“Every Will made by a man or woman shall be revoked by his or her marriage (other than a marriage in accordance with customary law) except –
(a)    A Will expressed to be made in contemplation of the celebration of that marriage:
Provided that the names of the parties to the marriage contemplated are clearly stated”.
Thus, a Will made in contemplation of marriage is not revoked by that marriage provided it can be gathered from the content of the Will that it was made in contemplation of that particular marriage. In Re Langston (1953) 1 All ER 298, the testator made a Will in November 1935 in which he gave all his property to his named fiancée and in December 1952 he died. It was held that the Will was not revoked because it was made in contemplation of a marriage, and the marriage was to the same person named in the Will as sole beneficiary. The Will was therefore valid.
Powers of appointment are powers given under some settlement or trust authorising the donee to make an appointment of some or all of the trust property.
An appointment may be made in which a donee of the power is authorised in inter vivos settlement or a trust or even in a Will – Re Beatty (1901) 1 WLR 1503, to appoint a specified done amongst given objects including himself (the done) – Re Penrose (1933) Ch. 793. The done may be limited as to the class of persons that falls within the object of the power – Re Park (1932) 1 Ch. 58, or allowed wide discretion to make the appointment.
This power of appointment can be exercised by the done either in a Will or by deed. Where the power is exercised in a Will made by the done, whether marriage will revoke such appointment in circumstances where it ordinarily revokes a Will, depends on the provisions of the applicable Wills Law.
For example, section 18 of the Wills Act, which provides thus –
“Every Will made by a man or woman, shall be revoked by his or her marriage except a Will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not in default of such appointment pass to his or her heir, customary heir, executor, or administrator, or the person entitled as his or her next-of-kin, under the statute of distribution...”.
And section 11(a) of the Wills Law of Lagos State which provides thus –
“Every Will made by a man or woman shall be revoked by his or her marriage (other than a marriage in accordance with customary law) except –
(b)    A will made in exercise of a power of appointment which the property thereby appointed would not in default of such appointment pass to his or her heir, executor or administrator or the person entitled as his or her next-of-kin under any written law relating to the distribution of the estate of person dying intestate.”
Thus, if the property so appointed in the Will, will not in default of that appointment pass to the person entitled, or to the heirs, executors, or administrators of the testator, under the relevant rules of intestacy, the appointment made in the Will, will not be revoked by marriage contracted by the testator after the making of the Will in which the power of appointment is exercised.

This exception is a creation of the Supreme Court of Nigeria and not one provided for under the Wills Laws or Act.
Where parties who had been legally married under native law and custom undergo another form of marriage under the Act by going for another marriage (a fresh marriage) under the Marriage Act, the Supreme Court has held that this second form of marriage does not revoke a Will made, by any of the parties prior to the celebration of the new marriage. To the Supreme Court, this is not a new marriage – Jadesinmi v. Okotie-Eboh & Ors (1996) 2 NWLR (Pt. 429) 128.
1.     A solicitor should always inform his client on the types of Will available and should give good advice on why a client should choose one instead of another.
2.     A solicitor should inform his client on how a legacy can lead to failure.
3.     A solicitor should also make his client aware of how a Will can be revoked with its exceptions.

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